Citation Nr: 0214408
Decision Date: 10/16/02 Archive Date: 10/29/02
DOCKET NO. 99-13 447 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to an increased (compensable) rating for hearing
loss.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Zills, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1974 to June
1977.
This appeal arises before the Board of Veterans' Appeals
(Board) from a May 1999 rating decision of the Jackson,
Mississippi, Regional Office (RO) of the Department of
Veterans Affairs (VA), which continued a noncompensable
rating for hearing loss. The claim was previously remanded
in February 2000 for provision of a VA audiological
examination.
On November 13, 2000, the Board issued a decision denying a
compensable rating for hearing loss. The veteran appealed
the Board's decision to the U. S. Court of Appeals for
Veterans Claims (Court), and in May 2001 the Court issued an
order which granted the VA Secretary's March 2001 motion to
vacate the Board's November 13, 2000 decision and remand the
case to the Board for consideration of the Veterans Claims
Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114
Stat. 2096 (Nov. 9, 2000). The case was subsequently
returned to the Board.
FINDING OF FACT
The veteran's hearing loss is productive of a noncompensable
level of impairment.
CONCLUSION OF LAW
The criteria for entitlement to an increased (compensable)
rating for bilateral hearing loss are not met. 38 U.S.C.A. §§
1155, 5107 (West 1991); 38 C.F.R. Part 4, §§ 4.85-4.87,
Diagnostic Code 6100 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
The March 2001 motion to the Court by the VA Secretary and
the May 2001 Court order direct that the Board determine the
applicability of the notice and duty to assist provisions of
the recently enacted Veterans Claims Assistance Act of 2000
(VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001); 66
Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. § 3.159).
This law eliminated the concept of a well-grounded claim,
redefined the obligations of VA with respect to the duty to
assist, and imposed on VA certain notification requirements.
First, VA has a duty to notify the veteran of any information
and evidence needed to substantiate and complete a claim. 38
U.S.C.A. §§ 5102 and 5103 (West Supp. 2002); 66 Fed. Reg.
45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R. §
3.159(b)); see Quartuccio v. Principi, 16 Vet. App. 183
(2002) (holding that both the statute, 38 U.S.C. § 5103(a),
and the regulation, 38 C.F.R. § 3.159, clearly require the
Secretary to notify a claimant which evidence, if any, will
be obtained by the claimant and which evidence, if any, will
be retrieved by the Secretary).
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A (West Supp. 2002); 66 Fed. Reg. 45,630-45,631 (Aug. 29,
2001) (to be codified at 38 C.F.R. § 3.159(c)).
Considering whether the duties to notify and assist have been
satisfied with regard to the veteran's claim for a
compensable rating for hearing loss, the file shows that
through correspondence, the rating decision, the statement of
the case, and the supplemental statement of the case, the
veteran has been informed of the evidence necessary to
substantiate his claim for a compensable rating. Upon review
of the file, the Board finds that the record appears to be
complete regarding relevant medical evidence from June 1978
(the date the veteran was service connected for hearing loss)
forward, and there is no basis no believe that any records
prior to this date would provide a basis to grant the
veteran's claim. The veteran was provided a medical
examination regarding his hearing in March 2000. Based on
the entire record, the Board finds that the duties to notify
and assist have been satisfied. 38 U.S.C.A. § 5103; 38
C.F.R. § 3.159(b).
II. Compensable rating for hearing loss
The veteran contends that his bilateral hearing loss is more
severe than currently evaluated, and warrants an increased
rating. After a review of the record, the Board finds that
the veteran's contentions are not supported by the evidence,
and his claim is therefore denied.
The veteran established service connection for hearing loss
by means of a June 1978 rating decision, which assigned a
noncompensable disability rating. That rating was continued
in a May 1999 rating decision, which is the subject of this
appeal.
The severity of a disability is ascertained, for VA rating
purposes, by application of the criteria set forth in VA's
Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1998)
(Schedule). At the time of the veteran's claim hearing loss
was evaluated pursuant to the criteria found in Diagnostic
Codes 6100-6110 of the Schedule. 38 C.F.R. §§ 4.85-4.87
(1998). Under these criteria, the degree of disability for
bilateral hearing loss is determined by application of a
rating schedule that establishes eleven auditory acuity
levels, ranging from Level I (for essentially normal acuity)
through Level XI (for profound deafness). 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4, §§ 4.85-4.87, Diagnostic Codes
6100-6110, Tables VI-VII (1998).
The criteria for evaluation of hearing loss were amended
during the pendency of the veteran's appeal, effective June
10, 1999. See 64 Fed. Reg. 25202-25210 (May 11, 1999).
Pursuant to the criteria in effect subsequent to June 10,
1999, a different chart is provided for use where all of the
pure tone thresholds are over 55 decibels in either ear; or
where either ear had a pure tone threshold of 30 decibels or
less at 1000 Hertz and 70 decibels or more at 2000 Hertz; or
where the examiner certifies that the use of the speech
discrimination test is not appropriate because of language
difficulties, inconsistent speech discrimination scores, etc.
38 C.F.R. §§ 4.85-4.87, Diagnostic Code 6100 (2001).
The United States Court of Appeals for Veterans Claims has
held that for the purpose of appeals, where the law or
regulation changes after a claim has been filed or reopened
but before the administrative or judicial appeal process has
been concluded, the version most favorable to the appellant
should be applied unless provided otherwise by statute.
Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991).
Therefore, the Board will evaluate the veteran's
symptomatology pursuant to both the criteria in effect prior
to June 10, 1999, and the criteria in effect subsequent to
that date, to determine which may be more favorable to the
veteran.
The Board finds that the new criteria are not substantively
different as regards the evaluation of the veteran's claim
and that both sets of criteria are equally unfavorable. The
evidence does not show that all of the pure tone thresholds
are over 55 decibels in either ear or that either ear had a
pure tone threshold of 30 decibels or less at 1000 Hertz and
70 decibels or more at 2000 Hertz. Furthermore, no
audiological examiners have certified that the use of the
speech discrimination test is not appropriate because of
language difficulties, inconsistent speech discrimination
scores, or any other reason. Therefore, the Board finds that
the amended criteria are inapplicable in this case.
The Board notes that where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, the present level of disability is of
primary importance. Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
The report of a March 2000 VA audiological evaluation, the
most recent evaluation of the veteran's hearing loss, shows
that the average pure tone threshold at 1000, 2000, 3000, and
4000 hertz was 28.75 decibels in the right ear and 26.25
decibels in the left ear and that speech recognition was 94
percent in the right ear and 94 percent in the left ear.
Under the criteria set forth in the Schedule, the veteran's
hearing loss is assigned Level I in the right ear, and Level
I in the left ear. 38 C.F.R. § 4.87, Table VI (1999). That
degree of bilateral hearing loss, as determined by the
Schedule, warrants the assignment of a noncompensable
evaluation under Diagnostic Code 6100, pursuant to the
criteria for the evaluation of hearing loss in effect prior
to June 10, 1999. 38 C.F.R. § 4.87, Table VII (1999).
The Board notes that the evaluation of hearing loss would be
performed differently pursuant to the criteria in effect
subsequent to June 10, 1999, where all of the pure tone
thresholds were over 55 decibels in either ear, or where
either ear had a pure tone threshold of 30 decibels or less
at 1000 Hertz and 70 decibels or more at 2000 Hertz.
However, the Board notes that neither of those situations
apply in this case, as the veteran's pure tone thresholds, in
decibels, at the March 2000 VA evaluation were as follows:
HERTZ
1000
2000
3000
4000
Average
RIGHT
25
30
30
30
28.75
LEFT
25
20
20
30
23.75
Speech audiometry revealed speech recognition ability of 94
percent in the right ear and 94 percent in the left ear.
Therefore, the Board finds that the application of the
Schedule pursuant to the criteria in effect prior to June 10,
1999, remains identical to use of the criteria in effect
subsequent to that date. The Board notes that none of the
examiners have certified that the use of the speech
discrimination test is inappropriate because of language
difficulties or inconsistent speech discrimination scores.
Accordingly, the Board finds that the criteria for
entitlement to an increased (compensable) rating for hearing
loss are not met and the veteran's claim therefore is denied.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, §§
4.85-4.87, Diagnostic Code 6100 (2001).
ORDER
Entitlement to an increased (compensable) rating for hearing
loss is denied.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.